Legal Practitioners—Barristers—Striking off roll—Grave professional misconduct—Instigation of baseless prosecution—Devised to intimidate solicitor—Extravagant attack in opening proceedings upon professional character and reputation of solicitor—No evidence to support allegations. Legal Practitioners—Solicitor—Conduct of case for client without means—Maintenance—Whether maintenance now a crime. High Court—Appeal as of right—Appeal from order striking name of barrister from rolls—Special leave necessary—Judiciary Act 1903-1959 (Cth), s. 35 (1) (a) (1) (2), (1) (b).
Decision
July 1. THE COURT delivered the following written judgment:- This is an appeal from an order of the Full Court of the Supreme Court of New South Wales. That order is that the name of the appellant be struck off the roll of barristers of the State of New South Wales on the ground that he has been guilty of such grave professional misconduct as shows him not to be a fit and proper person to practise as a barrister. The charges made against him arose out of four prosecutions for indictable offences and the conduct of these by the appellant at the preliminary hearing before a magistrate. These prosecutions were, on the advice of the appellant, launched by a client of his against a solicitor, and were admittedly devised as a means of intimidating that solicitor into ceasing to act for a certain lady in certain civil proceedings pending between her and that client. In opening the proceedings before the magistrate the appellant deliberately used the occasion to make a savage public attack on the professional character of that solicitor. He made that attack in extravagant terms, alleging fraud, perjury and blackmail. He knew that he had no evidence to substantiate such allegations. At the end of his opening he invited the man whom he was prosecuting for a crime to defend himself before any evidence had been given against him, and intimated that, if he were to cease to act for his client, the criminal proceedings would have achieved their object and could be discontinued. It is necessary, of course, that we should explain our view in some detail, but we may say at once that we are of opinion that the Supreme Court was entirely right in the conclusion which it reached. (at p188)
2. With regard to the jurisdiction of the Supreme Court, it is sufficient to refer to Ziems v. The Prothonotary of the Supreme Court of N.S.W. (1957) 97 CLR 279, at pp 290, 291 . The words "fit and proper person" are the words used in the Charter of Justice of 1823, which issued under the authority of the Imperial statute 4 Geo. IV, c. 96, and by which the present Supreme Court of New South Wales was constituted. Clause 10 of the Charter provided for the admission of persons to practise in the Court. It empowered the Court to approve, admit and enrol persons who had been…
Grounds of appeal
[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.
[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.
[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.
Consideration
[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.
[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.
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AGLC
Clyne v New South Wales Bar Association [1960] HCA 40
Case
[1960] HCA 40
Decision Date
CaseChat Overview and Summary
The High Court of Australia considered an appeal by Mr. Clyne against a decision of the New South Wales Bar Association. The dispute concerned the fitness of Mr. Clyne to practice as a barrister, following findings of professional misconduct.
The central legal issue before the High Court was whether the Bar Association had acted within its powers in finding Mr. Clyne guilty of professional misconduct and, consequently, whether it was justified in refusing to admit him to practice. This involved an examination of the relevant provisions of the Legal Practitioners Act 1963 (NSW) and the principles governing the admission and disciplinary proceedings of barristers.
The Court analysed the evidence presented to the Bar Association and concluded that the findings of misconduct were well-founded. It applied the principle that a barrister must possess not only legal knowledge but also a high degree of probity and character. The Court held that the Bar Association was entitled to consider the applicant's past conduct when determining his fitness to practice, and that the findings of dishonesty and lack of candour were sufficient grounds to refuse admission.
The appeal was dismissed, and the decision of the New South Wales Bar Association was upheld.